#BrianMolefe 'won't pay back what he doesn't think he should': lawyer

Pretoria - Former Eskom CEO Brian Molefe and his legal team will now have to regroup and ponder on their next move, after the High Court in Pretoria on Tuesday refused them leave to appeal the January decision which ordered Molefe to pay back all money received from the power utility's pension payout.

Molefe's lawyer Barry Farber spoke to journalists at the Pretoria court following the ruling Tuesday, saying: "We are gonna consult, and regroup, and see what happens."

Farber said at this stage it was not a foregone conclusion that Molefe's next move would be to petition the Supreme Court of Appeal in Bloemfontein to hear his case - appealing the high court's January decision.

"We need his instructions, I can't tell a client what to do," said Farber.

The lawyer said Molefe will now abide by the high court's decision however the former Eskom CEO will not pay back what he doesn't think he should.

"Obviously he is going to abide by the court judgement, but he is not going to pay back that which he does not think he should. That is something else that needs to be deliberated on and debated. Surely, he is a law-abiding citizen and he will abide by the court for sure," said Farber.

Earlier, a full bench of high court judges refused Molefe leave to appeal their January decision - which established that he had resigned from Eskom, was not entitled to a pension payout and must pay back the R11 million already advanced from the R30 million pension payout granted to him.

The judges said there is no prospect of a different positive judgement for Molefe, even if he takes his appeal to the Supreme Court of Appeal.

"Mr Molefe applies for leave to appeal to the Supreme Court of Appeal against the whole of the judgement and order of this court handed down on the 25th of January 2018. We have carefully considered arguments advanced by counsel for all the parties," Judge Elias Matojane said as he delivered judgement on Tuesday.

"We are of the view that there is no prospect that another court would come to a different conclusion on any of the grounds of appeal raised by Mr Molefe. The leave to appeal is refused for reasons set out in the main judgement."

The court also ordered Molefe to pay the costs "including the cost of two counsel who were so employed".

Molefe left Eskom under a cloud after being implicated in a damning "state capture" report by former Public Protector Thuli Madonsela alleging undue influence by personal friends of then-president Jacob Zuma in the running of state firms.

On January 25, the high court ruled that Molefe's subsequent reinstatement at the power company was "at variance with the principle of legality and is invalid and false".

"We also found that Mr Molefe was never entitled to receive any pension benefits from the Eskom pension fund, and any payments made in lieu of such benefits were patently unlawful," Judge Matojane read out the judgement on behalf of a full bench of high court judges in January.

That January court matter had been brought by South Africa’s official opposition, the Democratic Alliance, and trade union Solidarity - who were seeking an order declaring Molefe’s R30-million pension payout unlawful and for it to be set aside.

Meanwhile, Solidarity insisted on Tuesday that Molefe has to pay back the R11 immediately, or further action will be instituted.

"He has to do it [the payment] immediately. That money is unlawful, it was money meant to enrich him at the detriment of Eskom and the taxpayers. From a criminal point of view, that also boils down to fraud. He must immediately pay back that specific money," said Solidarity chief executive Dirk Hermann.

"We have also laid criminal charges against Mr Molefe. The Hawks have indicated that they will investigate. They said they have already started with the investigation."